TUBULAR RIVET & STUD CO. v. STANDARD FINDING CO., Inc., 231 F. 170

PUTNAM, Circuit Judge. This case arises under a patent for an ornamental design, issued to' Mellen N. Bray, No. 39,201, on March 27, 1908. The patent is very brief, but as far as that is concerned, it is sufficient. It is said to be for a new, original and ornamental design for lacing hooks. The claim is given as follows: “The ornamental design for lacing hooks, as shown.” Aside from the drawings showing the lacing hook with an oval head, there is no intimation given of the originality or the ornamental features of the lacing hook.

The learned judge of the District Court before whom the case was tried gave a careful opinion covering the state of the particular art in question, including a description of the lacing hook covered by the plaintiff’s design.

So far as we can see, the plaintiff’s design contained nothing new except a slight change in the shape of the neck of the hook and the substitution of an oval head in the place of the usual circular head, which is so common in men’s, women’s and children’s shoes, and while these ideas have a considerable measure of novelty, we do not think that they involved such a full measure of novelty as to amount to invention. As the result of the investigation by the District Court, the bill was dismissed, with costs, and there can be no possible doubt that the conclusions reached by that court should be affirmed.

The appellant relies particularly on the opinion of this court in Foster v. Tilden-Thurber Co., decided on November 13, 1912, 200 Fed. 54, 118 C. C.

A. 282, which was for a design for a clothes brush; but it is possible to see that the patentability of this clothes brush might have been sustained, where the patent now before us should not be accepted, particularly in view of the fact that in the clothes brush case the respondent relied especially upon the general propositions that the configuration of the clothes brush constituted a proper subject for a design patent, and that the patented design was .not anticipated.

However, there is as much reason for holding that the case decided was improperly decided as there is for making it a precedent for an indefinite number of judgments in favor of other patents. Every patent of this character must depend upon its own merits. The judgment of the District Court is affirmed, with costs of appeal for the appellee.